The idea that your most prized possessions could be taken away from you at any moment by authorities with little-to-no justification is a terrifying one, but stories today from The New Yorker and ProPublica show civil forfeiture laws are forcing innocent citizens never charged with a crime to fight those who are supposed to serve and protect for their property in court.
Forfeiture laws have noble intentions at heart. They're meant to give police the right, pending a judge's approval, to seize money, vehicles and real estate from drug kingpins, Wall Street con men, or mobsters. Bad people should not be able to keep the good things they buy with bad money. But more and more cases are popping up where civil law is used to seize assets in cases where no criminal charges are laid, and often against citizens who may not have enough money to properly defend themselves in court. As ProPublica's Isaiah Thompson explains, the burden of proof in a civil forfeiture case is much lower than a criminal one:
Doing so offers prosecutors considerable advantages. Unlike the “proof beyond a reasonable doubt” required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a “preponderance of evidence” connects the property — not its owner — to a crime. Technically, the property — not the owner — is named as the defendant.
Some of the case file names will surprise you. In one case defense attorney David Guillory, who recently settled a high-profile case against allegedly abusive civil forfeiture practices in Tenaha, Texas with the help of the ACLU, told to The New Yorker's Sarah Stillman, the case was simply "State of Texas vs. One Gold Crucifix." That was all the officers seized.
The case in Tenaha, Texas drew national attention last year. People driving out-of-town rental cars along the known drug trafficking highway strip outside of town were often stopped and had their cars searched. If the officers found any amount of cash, or if they suspected drugs were in the car for any reason, they offered the drivers a choice: faces felony charges or have their possessions seized. It didn't matter that there was no evidence linking their possessions to the drug trade. Most cases went off an officer's claim that he could smell marijuana coming from the car. "This was, plain and simple, highway robbery," Elora Mukherjee, an attorney with the ACLU, said at the time. The county settled with the ACLU and agreed to reform its forfeiture policies.
The reality is that most civil forfeiture cases are a lot like the ones in Tenaha, Texas. "There’s this myth that they’re cracking down on drug cartels and kingpins," Lee McGrath, a legal expert on forfeiture cases in Georgia, explained to The New Yorker's Stillman. "In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back."
Civil forfeiture saw a dramatic rise after Congress passed the Comprehensive Crime Control Act in 1984 that established a fund-sharing program between local law enforcement agencies who helped federal forfeiture investigations. States established local forfeiture laws shortly after, and business boomed. In 1985, the Department of Justice took in $27 million in forfeiture proceeds. It has grown into a billion dollar business. Per ProPublica:
One measure is the growth of a program in which federal law enforcement officials seize property on behalf of local authorities in exchange for a share of the proceeds. In 2000, officials racked up $500 million in forfeitures. By 2012, that amount rose to $4.2 billion, an eightfold increase.